Commentary on Canadian Labour and Employment Law Issues

July 04, 2014

Unsolicited Disclosure Obligation and the Duty to Bargain in Good Faith

The Alberta Labour Relations Board considered the extent of the duty to bargain in good faith and, specifically, the requirement to disclose information in the course of collective bargaining. Specifically, a decision to layoff all of the employer’s full-time firefighters prior to an award being issued by a Compulsory Arbitration Board.

The duty to bargain in good faith continues to apply during the compulsory arbitration process. The duty begins when a notice to commence bargaining is served and it continues during the compulsory arbitration process until a collective agreement is achieved: see UNA v. Provincial Health Authorities of Alberta, [2003] Alta. L.R.B.R 376 at para. 13.

Part of the content of the obligation to bargain in good faith, is a duty to disclose “pertinent information so that both parties can intelligently appraise proposals. This blends with and promotes the goal of full and open discussion between the parties.” CUPE, Local No. 30 v. City of Edmonton, [1995] Alta. L.R.B.R. 102

Where the Union requests information from the employer at the bargaining table, “ thereby creating an obligation on the employer to respond honestly.” U.N.A. v. A.H.A et al [1994] Alta. L.R.B.R. 250 [no such request was made in this case]

Where the Union does not make a specific request for information at the bargaining table, the employer is nonetheless required to disclose “de facto decision[s] that will have a significant impact on the employees in the unit.” The duty “… goes beyond mere disclosure and requires there be full and frank discussion over the issues arising out of the disclosure”: see Retail Wholesale Canada Local 285, Division of National Automobile, Aerospace, Transportation and General Workers of Canada v. Brewers' Distributor Ltd., [2000] Alta. L.R.B.R. 298 at para. 55.

.... the Union is entitled to bargain on the basis of the enterprise as it will be in the immediately foreseeable future, not as it was before the management decision. To not disclose a management decision with a major impact on the bargaining unit is tantamount to a misrepresentation. And it is a misrepresentation that can deprive the Union of the ability to negotiate about the real issues in the workplace – perhaps to address issues that might influence the decision to close, perhaps (and more likely) to bargain about the implications of the closure. In the worst case, a failure to make disclosure can result in a collective agreement that will immediately become irrelevant.

The obligation is attracted to decisions “that have a significant impact on employees in the bargaining unit “ and only when they have become de facto decisions. The obligation does not apply to ideas even when those ideas have “a reasonable likelihood.”

The real issue in Rocky View County was when the decision became de facto and whether there was timely disclosure. The Board commented:

It is clear from this Board’s jurisprudence that a de facto decision is something more than: a serious possibility, an effective recommendation, or even a highly probable decision: see CUPE, supra at page 110. Instead, the decision must be sufficiently certain that one can say the decision has effectively been made. Each case has to be judged on its own facts. Thus, a sale of a business that is conditional on certain things can be sufficiently certain to demand disclosure; so too, can reorganization plans that are in place, but awaiting final approval: see: Central Web, supra, and CUPE,supra.

Once a de facto decision is made, an employer must disclose its plans to a union with sufficient detail to enable the union to have an understanding of the extent of the changes that are planned. After all, the whole raison d’être for the duty to disclose is to require the disclosure of “pertinent information so that both parties can intelligently appraise proposals”: see quote from CUPE, supra

A “play-by-play commentary” is not required and a union cannot be heard to complain where they do not reasonable steps in the face of the disclosure.

The Board found a breach of the duty to bargain in good faith in this case.

In discussing the appropriate remedy, the Board noted that their task was “to “undo, to the extent possible, the damages caused by the breach”. They reasoned:

In the case before us, the real loss caused by the failure to disclose is the lost opportunity to bargain alternatives to the lay-offs or greater lay-off protection, failing which the Association could have sought different job protection language from the CAB.

The Board made a declaration that the employer violated the duty to bargain in good faith provisions in the Labour Relations Act and posting the decision. They also directed that a further hearing date be scheduled to deal with remedy and that a resolution conference be scheduled “so that the parties have the opportunity to work out a remedy on their own with the assistance of a Chair or another Vice Chair of the Board.” The Board also observed that the term of the collective agreement was set to expire and that the parties should “work at improving their relationship as they head back into bargaining in the coming months.”

This is an excellent review of the unsolicited disclosure obligations during collective bargaining.

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